A to Z of Privacy: (Indian Express, Explained); A sterling judgement on right to privacy:  How privacy stacks up:

A to Z of Privacy: (Indian Express, Explained); A sterling judgement on right to privacy:  How privacy stacks up:

Context

• A nine-judge bench of the Supreme Court, unanimously affirmed the existence of a constitutional right to privacy.

Verdict

• The ADM Jabalpur decision from the Emergency era was formally overruled, and the majority openly criticized the reasoning in Koushal, the verdict on Section 377.

The future of the right to privacy in India

Is the right to privacy a monolithic conception, or does it consist of different variants?

• The Indian jurisprudence had a hint that privacy is best conceptualized as consisting of clusters of rights.
• Privacy in India has raised issues ranging from surveillance, search and seizure, and telephone tapping to abortion, transgender rights and narco-analysis.
• It is difficult to escape the conclusion that these cases raise distinct issues and demand different analyses.
• The Supreme Court has now confirmed it by acknowledging that different conceptions of privacy exist, it has significantly advanced the privacy jurisprudence in the country.
• Although there was near unanimity among the judges that privacy operates through different variants, there was no clear consensus on what these variants are.

When is it permissible for the state to restrict individuals’ privacy?

• The judgment offered no majority view on this point, although it seemed clear that restrictions on the right to privacy must at the very minimum be ‘just, fair and reasonable’.

Do infractions by private entities as well as the state fall within the ambit of constitutional privacy?

• Indian courts have abstained from applying fundamental rights against private persons unless required by the express words of the Constitution.
• In the context of privacy however, the Court had, on at least three previous occasions, blurred the conceptual distinction between the private law infringement of privacy and the constitutional infraction.

The two crucial components of the Judgement

Doctrinal component

• The Narendra Modi government’s stance that there is no fundamental right to privacy is based on the precedent of two Supreme Court judgements—M.P. Sharma vs Satish Chandra, district magistrate, Delhi in 1954 and Kharak Singh vs State of Uttar Pradesh in 1962.
• Both noted that the Constitution did not “specifically protect” the right to privacy.
• Those observations were based on the Supreme Court’s then-doctrinal position on fundamental rights crafted in the A.K. Gopalan vs State of Madras judgement in 1950.
• This position held that the fundamental rights guaranteed by Article III of the Constitution existed not as an interlocking grid but in silos.
• Article 14, which guarantees equality before the law, ensures that state laws cannot be arbitrary in nature or application.
• They must be reasonable. Article 21 protects life and personal libertyand the petitioners in the current case have argued that it implicitly contains the right to privacy as well.
• Those protections and rights can be constrained by “procedure established by law”. Without the reasonableness guaranteed by Article 14 to test that procedure, Article 21 is weakened.
• The privacy judgement thus reaffirms the strength of the Constitutional protections given to fundamental rights.

The philosophical component

• When the state has the right to intrude where it will in a citizen’s life, there can be no effective personal sphere.
• That is a dystopian vision. It is also incompatible with democratic structures on a practical level.
• The judgement also sketches out the evolution of the concepts of human dignity and the right to life, both guaranteed by the Constitution.
• Over the past century and a half, the understanding of the right to life and liberty has evolved beyond the physical into the idea of “an inviolate personality.”
• As justice Chandrachud pithily puts it, “The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual.”

Impact of individual privacy a fundamental right

On Aadhar –

• The government has collected biometric and demographic data of 1.17 billion Indians, which it claims will help in plugging leaks in social welfare schemes.
• Several petitioners had challenged Aadhaar claiming that since it is mandatory in all but name, it goes against their right to privacy.
• The government maintained that Indians don’t have a fundamental right to privacy.

On Biometrics –

• Biometric data include photographs, fingerprints, iris scans etc., which can be used to identify a person.
• Apart from the welfare schemes in which it is used to validate a beneficiary’s identity, India is pushing it for a host of other services, and companies are building technology to use this biometric data.
• Activists say such a large repository of biometric information can be used as a tool of mass surveillance.

On Choice –

• At a time of increasingly intrusive majoritarianism, the court has made it clear that “liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind”.
• This was done in the backdrop of beef eating issue.

Data – Mining –

• Data is the new natural resource. We are at the beginning of an era where data is the new oil.
• The Supreme Court noted: Something interesting is happening. Uber knows our whereabouts and the places we frequent. Facebook at the least knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to.

Euthanasia –

• Indian law disallows medically assisted suicide. But the Bench said the right to privacy includes the right to refuse food or even medicine.

Financial Technology –

• As Internet penetration increases, so does the opportunity for financial institutions to use technology to capture and service clients better.
• The government has been an enthusiastic backer of FinTech, using Jan Dhan Accounts, Aadhaar and Mobile, to reach a large section of the population that lay outside the banking system
• On the other hand, extensive use of FinTech in a country with poor Internet literacy and little awareness of cyber hygiene is in itself a threat to the integrity of the financial system.

On Laws –

• The Supreme Court ruled that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
• Attorney General K K Venugopal had argued that “the right of privacy may at best be a common law right, but [it was] not a fundamental right guaranteed by the Constitution”.

On NATGRID –

•  Conceptualised when P Chidambaram was Home Minister after the 26/11 Mumbai terror attacks, NATGRID seeks to integrate over 25 categories of database from agencies like railways, banks, airlines, credit card companies, immigration, etc., and make it available to law enforcement officers.
• Following last week’s order, the implementation of the programme could require amendments in several laws to allow sharing and transferring of data on items such as property and bank transaction details.

On Reproductive Rights –

• The Supreme Court counts reproductive rights as inherent to the right to life and liberty.
• Like privacy, this right is not mentioned in the text of the Constitution, but is a penumbral right, one derived from rights mentioned in the text
• The Supreme Court used the jurisprudence on reproductive rights in India and the United States to draw parallels with privacy as a penumbral right.

On Sexual Identity –

• The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual,” said the SC.
• It said its 2013 judgment, which re-instated Section 377 IPC, effectively criminalizing homosexuality, struck a “discordant note” on the jurisprudence of privacy.
• Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.

On Terror –

• The seamless structure and anonymity provided by the Internet has emerged as a new space for terrorists to exploit in the form of indoctrination, cyber attacks on financial systems, etc.
• Justice Chandrachud underscored the “legitimate interest” of the state to monitor the Internet against terrorists, subject to just, fair and reasonable restrictions against encroachment into privacy.